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‘Aggressor’ charge was reversible error 

A woman serving 19 years in prison for killing her paramour inside her bedroom will get a new trial after the North Carolina Court of Appeals unanimously determined that the trial court erred by instructing the jury on the aggressor doctrine.  

The aggressor doctrine denies an individual the benefit of a self-defense claim where the user of force is the aggressor in a situation, but even though the defendant here shot the deceased in the back and the pair had a history of vulgar arguments, evidence does not show that she was acting as the aggressor at the time that she fired the fatal shots.  

“In determining whether a self-defense instruction should discuss the ‘aggressor’ doctrine, the relevant issue is simply whether the record contains evidence from which the jury could infer that the defendant was acting as an ‘aggressor’ at the time that he or she allegedly acted in self-defense,” Judge April Wood wrote in the court’s April 19 opinion. “Where the trial court delivers an aggressor instruction ‘without supporting evidence, a new trial is required.” 

‘Tumultuous’ times 

Defendant Wendy Hicks met Caleb Adams, who was married, in September 2015 and the pair began an intimate and tumultuous relationship that lasted until Adams’ death on June 13, 2017. Hicks said that weeks before the shooting, she noticed significant changes in his behavior that she attributes to methamphetamine usage.  

Court documents say that on June 12, 2017 — the day before the shooting — Hicks threatened to send sexually explicit photos to Adams’ wife and that she told Adams’ wife over the phone that they were having an affair and that Adams was doing drugs. 

Later that day, Hicks said, a man showed up at her residence yelling and “looking for” Adams, who had expressed concern about his supplier raising his prices and Adams owing people money.  

Around 6:30 a.m. on June 13, despite having been told by Hicks to not come to her home, an enraged Adams stormed into Hicks’ trailer and demanded to see her phone. Hicks agreed only when Adams picked up her firearm from a nightstand and pointed it at her. Adams threw the gun down after searching the phone, but began shoving and hitting Hicks, who testified that she was afraid that Adams would hurt her, her daughter, or her daughter’s friend, who had spent the night.   

During the altercation, Hicks fired two close-range shots into Adams’ back, killing him. On July 11, 2017, Hicks was indicted on one count of second-degree murder. Despite Hicks’ objection at trial, Randolph County Superior Court Judge Bradford Long instructed the jury on the aggressor doctrine. Hicks was subsequently convicted of second-degree murder.  

No signs of aggression 

The appeals court reversed, however, agreeing with Hicks’ argument that the trial court committed reversible error through its jury instructions, finding a reasonable possibility that a different result might have been reached but for the error.  

Wood noted that the North Carolina Supreme Court has held that individuals are not required to retreat in their own home where they are threatened with assault, regardless of the character of the assault. Additionally, state law provides that the lawful occupant of a home is immune from civil and criminal liability for the use of force likely to cause death or serious bodily harm where they reasonably fear imminent death or seriously bodily harm to themselves or another. Further, one who unlawfully and by force enters a person’s home is presumed to be doing so with the intent to commit an unlawful act involving force or violence.  

Self-defense is not available, however, where the defendant is the aggressor in a situation. Here, the state argued that testimony from Adams’ wife denying that Adams was a violent man supports the inference that Hicks was the aggressor. But the Court of Appeals found that argument fatally flawed, noting that “the point in time where aggressor status may attach is temporally connected with the actual use of force.”  

Wood noted that Adams had threatened Hicks on several occasions, including half an hour before his death, and that he spent the two minutes he was inside Hicks’ home threatening her and initiating a physical altercation.  

The court also rejected prosecutors’ argument that Hicks was the aggressor because she threatened, on the night before the killing, to send explicit photos to Adams wife, finding that seven hours passed between that threat and the shooting.  

“The threats of sending sexual photographs to Caleb’s wife are insufficient to support a jury instruction on the aggressor doctrine, because these threats were not made at the time the self-defense occurred,” Wood wrote. “Moreover, we decline to hold that a threat to expose one’s extramarital affair constitutes conduct demonstrating an aggressive willfulness to engage in a physical altercation.” 

Hicks armed herself only after Adams had already held her at gunpoint and, after relinquishing the weapon, began pacing around the room with his fists balled, threatening to kill Hicks for ruining his life. In fact, the court found, Hicks attempted to leave the room before Adams assaulted her.  

“As defendant was attacked in her own home and feared for the safety of herself and others in her home, defendant acted in self-defense to repel Caleb’s assaults against her,” Wood wrote.  

Judges Lucy Inman and Hunter Murphy concurred in the result.  

Assistant Attorney General Joseph Hyde represented the state.  

Hicks was represented by Marilyn Ozer of Chapel Hill. Ozer declined to go into specifics about the case, as prosecutors still have the option of petitioning the state’s Supreme Court for review. But she wrote in an email to Lawyers Weekly that she sees the opinion as a significant one.  

I believe the Court of Appeals decision is important for victims of domestic violence as the opinion finds a woman does not become the aggressor while the man who has broken into her home and assaulted her is still in her bedroom within reach of her and able to continue his assault,” Ozer wrote.   

The 19-page decision is State v. Hicks (Lawyers Weekly No. 011-097-22). The full text of the opinion is available online at  

Follow Heath Hamacher on Twitter @NCLWHamacher 


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